Having apparently lost the political battle over a health care overhaul, Senators DeMint and Ensign, encouraged by the Heritage Foundation, are preparing to argue that it is unconstitutional in the hope that activist judges (I'm the one calling them activist judges, not DeMint, Ensign, or Heritage) on the Supreme Court will strike it down. When the left tried to do this in the case of restrictions on abortion it was a sign of weakness; it's a sign of similar weakness on the right now. Here is the Heritage post from this morning:
The leftist majority in the Senate is likely to vote down the DeMint/Ensign constitutional point of order, but the very objection itself will help build a record that courts will look at when determining whether or not Obamacare is unconstitutional. The Senate is not the final arbiter of whether or not the laws it passes are consistent with the United States Constitution. That question was settled over 200 years ago in Marbury v Madison. Although it is always difficult for the Supreme Court to thwart what is perceived to be the popular will, polling consistently shows that this legislation faces strong popular opposition. If that remains true after enactment, the majority of the Justices who are inclined to preserve the enumerated powers scheme and adhere to the original meaning of the text will have little inclination or incentive to stretch the Constitution to reach so decidedly unpopular and far-reaching a law as this one.